Justice Department vs. Louisiana Voucher Kids

By CLINT BOLICK

School-choice programs have faced no shortage of legal challenges en route to their adoption in 18 states and the District of Columbia. But none of the challenges is so perverse or perplexing as the Justice Department’s motion last month to wield desegregation decrees to halt Louisiana’s voucher program.

As part of its efforts to boost educational opportunities for disadvantaged children, last year Louisiana enacted the Student Scholarships for Educational Excellence Program. The statewide program provides tuition vouchers to children from families with incomes below 250% of the poverty line whose children otherwise would attend public schools that the state has graded C, D or F. This year, roughly 8,000 children are using vouchers to attend private schools. Among those, 91% are minority and 86% would have attended public schools with D or F grades.

Attorney General Eric Holder argues the program runs afoul of desegregation orders, which operate in 34 Louisiana school districts. By potentially altering the racial composition of those schools by taking minority children out of failing public schools, the Justice Department asserts the program “frustrates and impedes the desegregation process.” It has asked a federal court to forbid future scholarships in those districts until the state requests and receives approval in each of the 22 or more cases that might be affected.

If successful, the Justice Department’s motion could thwart school choice—not just vouchers, but charter schools—in hundreds of districts across the country that are still subject to desegregation decrees. And it would deprive thousands of Louisiana schoolchildren, nearly all of them black, of the only high-quality educational opportunities they have ever had.

Such a result would turn the desegregation decrees on their head, for it would inflict grave harm on the very children who are the decrees’ intended beneficiaries. Properly understood, desegregation and school choice share a common aim: educational opportunity.

In its landmark ruling in Brown v. Board of Education (1954), the Supreme Court made that paramount goal clear, recognizing “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”

After facing massive resistance to Brown, the Supreme Court approved the limited use of racial ratios for student assignments not to achieve enduring racial balance, but as a starting point in desegregating schools. Since then, the court repeatedly has struck down rigid adherence to racial ratios and has insisted that control of schools must be returned to local authorities as soon as vestiges of past discrimination have been eliminated.

But the Justice Department has been slow to cede control even in school districts that have become heavily minority, and districts are reluctant to relinquish federal funds that accompany desegregation decrees. Hence decrees remain in place many decades after the civil-rights abuses that gave rise to them.

Curiously, the Justice Department did not file its motion in any of the ongoing Louisiana desegregation cases. Instead, it seeks an injunction in Brumfield v. Dodd , a case filed nearly 40 years ago challenging a program that provided state funding for textbooks and transportation for private “segregation academies,” to which white students were fleeing to avoid integration. Since 1975, private schools have had to demonstrate that they do not discriminate in order to participate in that program.

The Louisiana Student Scholarships for Educational Excellence Program restricts participation to private schools that meet the Brumfield nondiscrimination requirements. The program further requires private schools to admit students on a random basis. Thus the program clearly complies with Brumfield. And the Brumfieldcourt has no jurisdiction over the desegregation decrees to which the Justice Department seeks to subject the voucher program.

Nor can any court properly force the state to seek advance approval from the Justice Department for a clearly nondiscriminatory program that advances the education of black children. As the Supreme Court ruled earlier this year in Shelby County, Alabama v. Holder, when it struck down the “pre-clearance” formula of the 1965 Voting Rights Act regarding federal approval for electoral changes, states cannot be forced to submit their decisions to federal oversight “based on 40-year-old facts having no logical relationship to the present day.”

The Justice Department’s motion has tremendous human implications, personified by Mary Edler, whose grandsons are using vouchers to attend kindergarten and second grade in a Louisiana private school. All of the public schools in their district are graded C, D or F. Thanks to the scholarship program, Mrs. Edler says, “My grandsons are flourishing at Ascension of Our Lord in all aspects. They have small classes and an outstanding principal and staff.” She calls the tuition vouchers a “true blessing”—one that will be lost if the Justice Department prevails.

In its zeal, the Justice Department has transformed a bipartisan education reform program into a partisan opportunity. On Sept. 17, House Speaker John Boehner and other Republican leaders wrote an open letter to Attorney General Holder, calling Justice’s motion “extremely troubling and paradoxical in nature,” given that it hurts the “very children you profess to be protecting.”

On Sept. 18, Louisiana Gov. Bobby Jindal was joined by former Florida Gov. Jeb Bush and South Carolina Sen. Tim Scott at the National Press Club in Washington, D.C., to denounce the Justice Department’s action. Mr. Jindal challenged administration officials “to come to Louisiana to meet face to face with these moms and dads and their kids and explain to them why [they] don’t think that these children deserve a great education.”

It won’t happen. Because for this Justice Department, desegregation long ago ceased to be about children or educational opportunities. It is about numbers and racial balance. If Justice succeeds in destroying Louisiana’s voucher program, the dreams and opportunities of countless children will perish with it.

Mr. Bolick is vice president for litigation at the Goldwater Institute and represents families and the Louisiana chapter of the Black Alliance for Educational Options defending the state’s voucher program.

A version of this article appeared September 24, 2013, on page A19 in the U.S. edition of The Wall Street Journal, with the headline: Justice Department vs. Louisiana Voucher Kids.